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tv   [untitled]    May 1, 2012 2:00am-2:30am PDT

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procedures but in advance of the hearing. >> the other issue he mentioned is whether the commission needs to unanimously recommend, whether it has to be unanimous. >> we consider that to be part of the procedure. >> the you have a position on that? >> our position is it is to make a recommendation. there is no limitation on whether it could be a majority, so we do not think it needs to be unanimous. >> other questions? >> he raised issue of possibly
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bringing in evidence of historical facts, and the way i heard it was similarly situated in law enforcement officers who pled guilty for misdemeanors or who had misdemeanors. you have a position on that? >> i think if it is going to come through and they say that officers can still commit a misdemeanor and still be effective police officers, we would not object to it. i think it is fine. i do not know if he may be referring to individuals, his presence of charges was improperly motivated, and we thing this region we think this
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evidence is inadmissible for that purpose. >> thank you. >> other questions? >> there is one manner regarding timing. as mentioned in our memo, if cooperation is not forthcoming with the sheriff, the mayor is going to amend the charges, to charge him with breach of of present duty to cooperate. good >> you are saying you have charged him and suspended him and charged him with misconduct that is a violation and if you will not talk to you that is a violation of his duties? >> absolutely. if a share of -- is the sheriff
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had committed misconduct and mirkarimi wanted to talk to him and provide truthful information and that deputies refuse, that deputy would be fired. every employee has a duty to cooperate with an investigation and to account for their conduct. >> other than mr. mirkarimi's testimony, is there other discovery, other reasons that could affect the timing we have discussed that would elongate the procedure in your mind? >> if share of mirkarimi were to provide us with the documents and we requested --
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>> aside from cooperation, what else do you feel you need in order to have this herd and a timely basis from a >> we need to get a videotape from bohol of justice. -- from the hall of justice. >> the sheriff has no involvement in that. >> we serve them with a motion. >> everybody will have a chance to give public comment, but for now, we would really like to hear from the attorneys. good >> the other item that is pending is a motion for an order to compel him to testify. that is set for hearing on may 1. we have outstanding subpoena of its four telephone records set
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for may 4 year ago -- set for may 4. hopefully the testimony will be soon after. >> any other questions? >> what are the documents you are seeking to get from the sheriff's? >> the documents he obtained from the police department and the district attorney, which would include the same telephone records we are trying to obtain from may are also keen appear good it would include a videotape of the statements and whatever other materials regarding conversations with witnesses that were disclosed. >> anything else?
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thank you, sir. i have a couple more follow-up questions for you based on what he just said. with requests to interview the sheriff, and you have already said you are objecting to that. >> let me clarify, and we are going to make sure you have the applicable law on this later this evening or sometime tomorrow, and we did e-mail or letter about this. >> he was traveling all day, so that is probably why we did not get it. >> if we are going to submit it by e-mail maybe there will be a way to make sure it gets to everyone, but that is a topic for another day.
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we want clarification about whether or not they can do what they are trying to do. our reading says the ethics commission starts the investigation when they get a complaint. share of mirkarimi -- share of mirkarimi -- sheriff mirkarimi wants to cooperate. good we have requested a written opinion from you as to whether or not he has a duty to cooperate with the commission. if you tell him he does common he will cooperate. i am not sure i answered your question, but the fact of they have come forward and threatened that if you do not cooperate, we are going to amend and official misconduct and add failure to cooperate to
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those charges, to me that is beyond the pale. good and we have a legitimate question and needs to be straightened out, and we are not going to be bullied into doing things their way because they say thatbe done. >> any other questions? say that is the way it needs to
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perhaps he responded on the documents, and there appear to be documents as a result of the proceedings. i have misspoken. thank you for raising five. i think they want documents prepared in the course of criminal proceedings. we have the letter. we can provide it to you so you can see exactly what they are asking, and all we want is clarification on this issue. if you think he is going to cooperate, we will do it. >> is that the issue in the memo and this morning? >> there is a letter, but we requested a written opinion under the charter that says
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people can ask for written opinion on these issues. >> you received this letter this morning? >> i could give you the code section, but i think it is better to have it distributed. >> everything this commission does has to be done in open session, so when you say you want an opinion from us, it is not like you issued the judge and asked the judge to give you an opinion. we have to then schedule a meeting so we can decide how we want to respond to it, and i know you do not want to delay proceedings. and that is probably my number one goal, to try and set this up so we can get fairness to both sides but in an expeditious fashion. >> i concur.
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>> any other questions to? thank you. goohaving heard both sides, i tk my inclination would be to have the party's brief the legal issues, because i think we can get that more expeditiously. i think it will help us potentially narrow the issues, but more importantly ensure that we have the appropriate procedure in place to have died during -- to have a hearing. my concern with the tell a factual testimony in the brief is while i think it may be helpful, i do have some concerns
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the timing may be not worth the added benefit, so i think that is where i am sitting right now. it seems the party are in agreement, and we could provide summary of testimony relatively soon, which would be advantageous to both sides, so i think we should strongly consider requiring them to do so. thoughts by other commissioners on what this should look like? >> it makes more sense for the commission to take public comment before reaching any decision, since is an agenda item. good >> my thought was that we
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would deliberate a public comment to the extent we need final determinations, we would do so after. >> i did not want the commission to make a decision before taking public comment. >> you are saying to increase the legal issues and would not a factual issues that have been outlined? but the legal questions that have been identified by the parties. >> they are prepared to do that quickly? >> it sounds like the mayor will be able to do that within a week. any other response from the sheriff will come a week after, and then it will include any other arguments to the sheriff may have. i think at that point we will
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likely build in some apply time, but it sounds like the entire briefing can be done quickly. >> i do not have any objection to the increasing legal issues, but i think going forward in combination should be the mayor presenting his summary of the factual issues that it intends to prove, which i think could probably be supplied within two weeks. >> i think he said one week. good >> he said two weeks for some of law enforcement, so i was giving him the outside, that he would provide a factual summary of what he would intend to prove, in support of legal
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arguments they are making in their brief and that maybe two weeks after you get that, you would provide the city attorney a summary of the evidence you intend to prove in opposition to the mayor's action so that after we have made our determination on the legal questions, we would be in a position to move forward very quickly with a hearing to the extent that we decide we needed based upon the information provided by the two sides. >> i agree with that. but i agree as well, and at that
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point we would make a decision about testimony and how much is needed and which witnesses we would want to see. at that point i think we definitely need to figure it out, once we see the list of witnesses we think they need to resolve credibility issues. >> i still would like to reserve that question, but i think we would need to decide. in addition to having the exchange of testimony, i think any stipulated facts should be agreed upon shortly thereafter, because then you will have seen with the other side intends to rely upon, and there could be some facts that could be stipulated, and i think you
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would want to know that as soon as possible. >> i looked at the written charges of official misconduct, and when you get to hear ross no. 8, -- when you get to paragraph number eight through about 15, most of then look like they would not be excluded by either side, that they seem to be factual historical statements, and i would think that kind of thing we could get out of the way, and when a dispute arises over some of the allegations and whether the evidence supports allegations. >> the timing would be what? two weeks from now we would hear from the city? >> yes.
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>> i am just asking about the timing on that, so that based upon what has been said, two weeks from now we would first hear from him, and the mayor's representatives on what they intend to prove, and that would be followed by a hearing in response, which would be at a later date. is that correct? >> yes, so they would submit in writing a witness list with a summary of each likely testimony, and we would get a copy of that, and then his team would respond and provide their list of witnesses and testimony. one of the legal and procedural issues that concerns me, and it
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may slow down the process, is the issue that was raised in the letter. ga you feel you need to brief that in more detail beyond the letter? i have not seen it, so i can make no comments. the reason i ask is because if you are comfortable with the mayor providing a letter of response to that, perhaps we would have some ability to resolve that issue faster.
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>> that would be preferable, and i believe we set forward the applicable law sufficiently pure your -- sufficiently pure good -- sufficiently. i just want to make sure mr. keith can understand our position, because we want to have an opportunity for him to respond, but i think we set it forth now adequately in the letter, because when you investigate, a complaint has to be brought to the commission, and the commission decides whether it will be brought to the commission. i thing we set forth the legal
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issues sufficiently pure good i want to make sure council can respond. >> what i understand is that it was a request for a legal opinion that was more inquisitive than stating a position, but we are happy to state our position on whether the procedures need to happen before the city attorney can investigate possible misconduct. good >> you have any thoughts procedure wireless -- procedurewise. what is the commission's role? >> the opinion comes from the commissioners.
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they can act on their behalf and make a judgment accordingly. >> would the staff to provide a memo of some sort? >> no, that is counsel. gooi did try to identify the provision that says in a person can request an opinion and the commission is required to issue that opinion within a certain amount of time. i think it is 21 days, but that can be extended period of -- that can be extended.
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>> if a response were to be submitted under this by the mayor, and you are saying we would need our counsel to advise us? we would come to our viewers, but when the council be responsible? >> no, you would be the entity responsible. >> we are responsible for making a decision? >> right. the council is responsible to guide you as you make a decision. but cracks even for an issue --
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>> even for an issue where the sheriff is asking for a formal opinion as to whether or not they need to comply with an ethics issue. i just want to make sure i understand. >> together we could provide you with no advice, but i could help provide data. to that end, would it be appropriate for me to ask a question on this issue? if i understand this issue, there is a city process going on right now but involves discovery intended to be used in this proceeding. is that correct? >> i would say there are three different things going on to gather evidence.
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one is an investigation asking people to voluntarily cooperate. the other thing is the mayor is issuing subpoenas. that is another way we are getting evidence, and the third way is by requesting a elected officers and employees of the city to operate with our investigation, and that is where we are requesting cooperation of the sheriff's, and other the conduct code that imposes a duty on all employees and officers to cooperate with an investigation of potential violations with the government conduct code, it is 3.240 of the campaign of governmental conduct code. >> is there a reason you are issuing them as mayor subpoenas?
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>> the mayor has independent authority to subpoena. >> may i ask a question? it took me awhile to find them, but you are moving under 3.699- 12 request for an issue winds of opinion, and it says any person may request the commission issue a written opinion with respect to that person's duty under the provisions of this charter or any ordinance related to campaign finance, conflict of interest lobbying, or government ethics. that is what you are relying on and asking us to decide whether or not the syrup has a duty to cooperate under these circumstances -- whether or not the sheriff' has the duty to
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cooperate? >> that is correct. >> i think it would be helpful -- maybe i will try to summarize what we have discussed, and we will hear public comments, and then we can discuss some more. and within one week, that would be april 30 region we would expect the mayor's brief on legal issues that were outlined in the commission staff memo and
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that were identified by counsel. at the same time, we would expect a response to the sheriff's letter brief but was sent today and that we will take a look at as well. within two weeks commo, that woe monday, may 9, the share of would respond -- the sheriff would respond to the mayor's brief discussing legal issues but were identified in the commission staff memo, identified by counsel, and would include any legal bases to
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dismiss or demurrer to the charges. >> thank you. the first monday in may is actually may 7, not may 9. in addition, on may 9, the mayor would be in a position -- may 7. monday, may 7, the mayor would be in a position to identify the witnesses on which she intends to rely on the subject matter of the testimony to be given. one week after that, may 14,